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Friday, August 31, 2012

The EEOC served up a "whopper" of a religious accommodation lawsuit on a Burger King (see what I did there?). You can read the Complaint here.

The employee's religion is a Pentecostal of Christian faith that requires women to wear only skirts or dresses. She brought this up at her interview for a BK cashier position, and the interviewer assured her it was not a problem. She got the job, but when she showed up to work in a skirt she was sent home.

Generally, employers are required to reasonably accommodate the sincerely held religious beliefs of their employees unless it would impose an undue hardship. Courts have allowed uniform requirements to trump religious garments in limited circumstances. For example, a prison can ban religious headscarves to prevent smuggling of weapons and contraband, and to prevent the scarves from being used to strangle people.

I doubt Burger King has such concerns. Although I guess it's possible that loose clothing presents some hazard around the kitchen. If the manager is just worried that the skirts clash with the BK unis - well, that sounds like an uphill battle to me.

Thursday, August 30, 2012

The Eastern District of Pennsylvania addressed an interesting issue on Monday, in Lalumera v. 2491 Corp. Both parties sought "hearing transcripts and related filings from the Pennsylvania Department of Labor and Industry respecting the employee’s unemployment compensation claim."

The Department (which I always call DLI, but the opinion calls DOL - any Pennsylvanians want to weigh in on this in the comments?) argued that the materials were "privileged" and refused to hand them over. DLI relied on new PA UC regs providing that UC information is "confidential" except as needed to decide UC issues and as required by law.

The Court rejected the "unemployment insurance privilege." However, it limited its holding to situations in which both employer and employee authorize disclosure.

Tuesday, August 28, 2012

Intensive study for the Law School Admission Test reinforces circuits in the brain and can bridge the gap between the right and left hemispheres, according to neuroscientists at the University of California, Berkeley, in findings reported last week in the online journal Frontiers in Neuroanatomy.
Those changes can improve reasoning ability and may increase a person's IQ score, the researchers said.

All joking aside, I loved the LSATs. I also loved law school. Whether I actually got any smarter, I can't say. But, I did learn to challenge assertions, objectively examine my own views and arguments, and view the world with an eye toward logic and reasoning. Even if I never practiced law, I still would have found the whole experience invaluable.

Friday, August 24, 2012

The employment law Case of the Week is Touchstone Television v. Nicollette Sheridan (yes, that Nicollette Sheridan). This case has more twists and turns than an episode of Desperate Housewives! I'm guessing . . . never actually seen the show. In any event, the case arises out of the actress's work on the series.

Ms. Sheridan claims that the show's creator hit her while filming in 2008. She complained to Touchstone, and they retaliated by killing her! That sounds pretty harsh . . . no, wait . . . they killed her character on the show. My bad. The end result was that Ms. Sheridan no longer had a spot on the show.

She filed a claim for wrongful termination that went all the way to trial. The trial ended with a deadlocked jury. Before a retrial, Touchstone appealed claiming that they never terminated Ms. Sheridan. Instead, they just decided not to renew her contract. That seems like a pretty solid argument - how can you wrongfully terminate someone if you don't terminate them?

In a classic case of good news-bad news for Touchstone, the California appellate court agreed with them that Ms. Sheridan can't bring a wrongful termination claim based on Touchstone's decision to not renew her contract. But, she can amend her complaint to bring a new claim! California statute prohibits discrimination against an employee "because of the employee's complaints about unsafe work conditions."

Well, if you liked the first season of this lawsuit, great news! - It sounds like it just got picked up for another season.

Tuesday, August 21, 2012

The employee in Brown v. UCBR (Pa. Commw. Ct. Aug. 9, 2012) is a real jackass . . . at least that's what he claims his supervisor called him. On appeal, the employee claimed he was eligible for unemployment compensation despite some colorful signs he posted in the workplace.

Initially, the warehouse employee posted signs on an out-of-service battery that stated "Do Not Use." Well guess what happened? Somebody used. So, the employee drew up new signs: "To the moron who can’t read do not use this, do not use this battery" and "Not charging you moron."

The employer terminated him for his "threatening" and "abusive" language. The Unemployment Compensation Board of Review found that he had engaged in "willful misconduct" and denied him unemployment compensation benefits. But, the Commonwealth Court saw it differently.

The employer's policy prohibited threatening conduct, and denigrating people because of a protected characteristic (race, religion, sex . . . a long list, not including morons). Even if the employer doesn't have a specific policy on point, the employee can still engage in "willful misconduct" (that's the catch-phrase for "you're not getting UC") if he exhibits: an "intentional disregard of the employer's interest" or "a disregard of standards of behavior which the employer has a right to expect."

The Court provides some helpful analysis about rude, vulgar, and abusive language in the workplace:

Calling a person a “moron” is rude, but it does not convey an intention to inflict harm on a person or his property . . . . Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that “moron” and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a “jackass” by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than “moron,” was uttered in a more troubling context because it was directed by a supervisor to his subordinate . . . . Concluding that “moron” was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse, we hold that Claimant did not commit willful misconduct.

So, the "jackass" wins on his appeal over the use of the word "moron." I wish the Court would have provided a citation for why "jackass" is a stronger word than "moron" (is there a list/hierarchy somewhere?). I also note that the work environment plays a huge role - perhaps "moron" would be inappropriate at the "ladies club."

Friday, August 17, 2012

Ah yes: naked twister, orgies, and Facebook . . . just another Case of the Week! In Targonski v. City of Oakridge, the plaintiff brought a number of workplace discrimination claims, including a sexual harassment hostile work environment claim.

Her claim started off pretty well. She alleged that co-workers were spreading rumors that she was a whore, a lesbian, invited people to orgies at her house, and distributed nude photos of herself to anyone who asked. That alone would be a decent Case of the Week . . . but dontcha just know there's a twist?

To establish a hostile work environment claim, the plaintiff must establish that she was subjectively offended by the conduct. Let's throw some Facebook posts into the fray!

[P]laintiff was herself discussing on Facebook her desire for a female friend to join her "naked in the hot tub." The previous day on her Facebook page, plaintiff was discussing "naked Twister." May 22, 2010 postings on plaintiff's Facebook page by her Facebook "friends" talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff's husband.

Hmmm, maybe she wasn't so offended by the workplace conduct after all. The plaintiff claims she was just joking around on Facebook with her friends. She also argued (and I think most people would agree here) that there's a difference between joking with friends on Facebook, and somebody spreading rumors in the workplace that she's a whore who loves orgies.

The judge decided that summary judgment was not appropriate in this case as the plaintiff's "explanation . . . has some substance and must be credited by the court." But she's not in the clear yet, because "the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter."

Wednesday, August 15, 2012

There have been some great tag teams over the years . . . the British Bulldogs, Hart Foundation, Legion of Doom . . . that rap group Tag Team (c'mon, you remember Whoomp! There It is) . . . and now, the EEOC and NLRB??? Yup, they're taking on workplace investigations in a steel cage match.

An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial. In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII. There does not have to be a separate adverse action.

What about the EEOC's tag team partner, the NLRB? In a recent decision (Banner Health System (.pdf)), the NLRB took a similar position:

As the judge found, human resources consultant JoAnn Odell routinely asked employees making a complaint not to discuss the matter with their coworkers while the Respondent’s investigation was ongoing. The judge found that the Respondent’s maintenance and application of this prohibition did not violate Section 8(a)(1). We disagree.

For some reason, this decision has been controversial in the blogosphere - but the core holding is actually based on a case from about a year ago. In Hyundai Am. Shipping Agency, Inc. & Sandra L. Mccullough, 357 NLRB No. 80 (Aug. 26, 2011), the NLRB held that:

Under the Board's balancing test, it is the Respondent's responsibility to first determine whether in any give investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up. Only if the Respondent determines that such a corruption of its investigation would likely occur without confidentiality is the Respondent then free to prohibit its employees from discussing these matters among themselves.

As the NLRB notes, employers often have good reasons for wanting investigations to remain confidential. In those instances, the employer may prohibit employee discussions about the investigation (according to the NLRB at least). Whether the EEOC will adopt a similar position remains to be seen.

FLSA collective action plaintiffs must clear the initial threshold of "conditional certification," which is a lenient standard requiring only substantial allegations that class members were victims of a single decision, policy, or plan. But to get to the real deal, "final certification," the plaintiffs must clear a higher bar. In Zavala, the Third Circuit set that bar.

Plaintiffs must establish that they are "similarly situated." Courts must make this determination on an ad hoc basis, applying all relevant factors on a case-by-case basis. The Court even gave us some factors to consider:

[W]hether the plaintiffs are employed in the same corporate department, division, and location; whether they advance similar claims; whether they seek substantially the same form of relief; and whether they have similar salaries and circumstances of employment.

The Court also declared that plaintiffs bear the burden of establishing that they are "similarly situated" by a preponderance of the evidence.

The Court also provided some analysis of the standard of review on appeals. "[A]pplying the legal standard to conclude whether the proposed plaintiffs actually are similarly situated" is a factual question subject to review only for "clear error." The Court just gave us the legal standard to apply, so moving forward the Court anticipates reviewing cases only for clear error "as only fact-finding should be at issue." In other words, the trial courts will have pretty broad discretion in this area.

Image: Third Circuit seal public domain as work of federal government. Used in commentary on Third Circuit. Not official use.

Friday, August 10, 2012

Yesterday, the Third Circuit issued its opinion in Zavala v. Wal Mart Stores, Inc., and it's the Case of the Week. It's just your standard RICO, false imprisonment, FLSA collective action . . . huh? Yeah, it's complicated. The Court includes some important new precedent on hyper-technical FLSA collective action certification issues that I will get back to next week. For now, let's stick with the false imprisonment claims.

The plaintiffs were janitors who worked on overnight cleaning crews in New Jersey Wal-Marts. Their false imprisonment claims were based on Wal-Mart's practice of locking its stores overnight without always having a manager with a key available to let the workers out. False imprisonment?

Nope. The Court held that the workers had given implied consent to the "imprisonment":

Apparently from the very beginning of their employment, Plaintiffs were aware that Wal-Mart's policy was to close and lock the main doors of its stores when they are not open for business. Plaintiffs nevertheless chose to continue coming to work. They do not allege that they objected to the locked-door policy, nor do they allege that they requested a manager be available during their shift to open the doors. Continuing to come to work under these conditions is "conduct . . . reasonably understood by another to be intended as consent" and is therefore "as effective as consent in fact."

Some employees arguably withdrew their consent by requesting to leave (claiming managers denied their request). Their claims still had problems though. False imprisonment claims can not succeed where the "prisoner" has a reasonable means of escape. The Wal-Mart had emergency exits, effectively dooming the janitors claims. The Court held that sounding the alarm and the fear of discipline were insufficient to establish false imprisonment.

Zavala is a long but interesting case. Tune in next week for the FLSA issues (and maybe the RICO stuff if I have time).

Thursday, August 9, 2012

The EEOC reports that an employer paid $400,000 to settle a harassment and retaliation lawsuit with a bunch of "terrorists." I'm putting that word in quotes because that's what their manager allegedly called them, not because they are actually terrorists:

The EEOC’s lawsuit charged that Fremont Toyota’s general manager singled out four Afghan American salesmen during a staff meeting, calling them “terrorists” and threatening them with violence. After the men reported the harassment, they faced retaliation by the car dealership, such as additional verbal harass­ment and extra job scrutiny. Finally, the salesmen felt they had no option but to resign. An Afghan-American manager was also fired from his job after he spoke up for the four salesmen.

Needless to say, employers shouldn't assume people are terrorists based on their national origin. My guess is that the manager didn't actually think they were terrorists, he or she just thought it was a funny joke. It should be needless to say (but apparently there is a need) that you shouldn't make fun of someone's national origin by calling them "terrorists" either.

Where are they now? According to the EEOC report:

"The irony of this matter is that, after being labeled 'terrorists' at our old job, most of us found work with the U.S. military serving in Afghanistan protecting U.S. soldiers from the terrorists," said Mohammad Sawary, one of the former employees.

Monday, August 6, 2012

In In re EnterpriseRent-A-Car Wage and Hour Employment Practices Litigation, 683 F.3d 462 (3d Cir. June 28, 2012), the Third Circuit defined "joint employment" under the FLSA. The case arises from a collective action for unpaid overtime brought by assistant managers. Enterprise Holdings, Inc. is the sole stockholder of 38 domestic subsidiaries. The sole question on this appeal was whether the parent and the subsidiaries jointly employed the managers.

The FLSA regulations expressly state that an employee may be employed by "two or more employers at the same time." 29 C.F.R. § 791.2(a). The regulations further inform us that the "determination of whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case." Hey, nobody ever accused the FLSA regs of being overly helpful.

The Third Circuit identified four specific factors to be used in determining whether an entity is a joint employer:

(1) authority to hire and fire employees;

(2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours;

(3) day-to-day supervision, including employee discipline; and

(4) control of employee records, including payroll, insurance, taxes, and the like.

But, the Court wants you to know that this is NOT an exhaustive list. You must consider "the total employment situation and the economic realities of the work relationship." The Court held that the parent did not jointly employ the managers. The important thing is that we now have an official test here in the Third Circuit.

Image: Third Circuit seal used in commentary on Third Circuit. Not official use.

In her lawsuit, she said she noticed stains appearing on a dress she had left hanging on her office door, and on the fabric covering her chair. She "initially thought that she must have dropped some food item on her chair and hadn't noticed it happening," her attorney Peggy Vallejo of Covington wrote.

More stains appeared over time on the dress and on the carpet, she alleges.

In August, she noticed her dress "was literally covered," causing her disgust and leading her to throw the item away, according to the lawsuit. The following Monday, she found a new stain on her office chair and alerted the office manager, who in turn notified the property managers who determined the substance was semen, according to the lawsuit

. . . . .

The property managers advised her to keep quiet, and the office manager hid a motion-activated camera in her office and hung another dress on her door, according to the lawsuit.

The lawsuit alleges [the attorney] was captured on video going into her office on Saturday, Aug. 27 and soiling the dress.

Criminal charges are now pending as well.

Note: In this country, we are all innocent until proven guilty; and everyone has the right to due process. Per the article, these are just allegations at this time.

Dickheads from India who stand in front of my counter and bitch and moan and tell me how many oil wells they own in their own country. . . . My service aint good enuff for the likes of you? F_____t!!!

It took me awhile to figure this out . . . but I think the last word is "Faggot" (not clear if the employee or HR Hero edited it out).

In any event, this is obviously not good for AT&T because people who read the post could see that the employee worked for AT&T and the content obviously indicates that she's talking about an AT&T counter and AT&T customers. So, AT&T fired her, citing their social media policy. The employee was then denied unemployment benefits because she was terminated for misconduct. So far, so good.

Not so fast! HR Hero does not provide the exact policy but twice states that the policy requires social media posts to be "appropriate." And, "Employees are to avoid making disparaging, obscene, or personal insults on any website where AT&T or its customers may be identified." (again, HR Hero's words, not the actual policy). If that's the case, AT&T may have a <gasp!> overly broad policy <sound of thunder>. Recall that the NLRB took issue with a policy prohibiting ""[o]ffensive, demeaning, abusive or inappropriate remarks, finding it overly broad.

So, LS may be OK with the termination but he might not take too kindly to that policy.
HT: My colleague Janine Gismondi via email.

Wednesday, August 1, 2012

OK, these aren't so much "employees" who were "fired" as they are athletes who were not allowed to compete at the Olympics:

4th Place is Not Top 24 - Poor Jordyn Wieber. If you click that link you will see the results of the women's gymnastics qualifying round. Jordyn is the reigning world champion and got the fourth highest score in the world in qualifying . . . which isn't good enough for the final round of 24. Each country can only send two athletes and two Americans finished ahead of Jordyn. To put this in perspective, the final person who qualified finished 28th and lost to Jordyn in every single event (by two full points on vault, and 5.8 points total). Jordyn did compete in the team finals and won a gold medal.

Intentionally Losing - Uh-oh, badminton scandal! Eight players were sent home for allegedly throwing matches to face easier opponents in later rounds. The funniest part of this (if I'm reading the story correctly) is that the South Korean team tried to lose . . . but couldn't!

Racist Tweets - Shocker: Racist tweets don't go over well at an international sporting event with people from around the world competing to foster good will. A female Greek triple jumper was booted for a tweet about West Nile Mosquitoes eating "homemade food" in reference to Africans. And a Swiss soccer player was sent home for a tweet about South Koreans . . . reports differ, but something about punching them, burning, and/or possibly a reference to "retards."

This is an employment law blog so I guess I should make at least some effort to tie this to employment law . . . so, here goes: the rules are the rules (even when they make little sense and lead to results we don't like), always try your best (unless you're trying to lose), and racist social media comments will not go over well at the Olympics or in the workplace.

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Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.